Opinion

Sanborn v. Hamilton Cty. Budget Comm. (Slip Opinion)

  • 142 Ohio St. 3d 20
  • 27 N.E.3d 498
  • 2014 Ohio 5218
Court
Ohio Supreme Court
Filed
Dec 2, 2014
Status
Published
Author
O'Neill
On the bench
O'Neill, O'Connor, Pfeifer, O'Donnell, Lanzinger, Kennedy, French
Cited by
6 cases
Authority
More cited than 60.9%

The opinion

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Sanborn v. Hamilton Cty. Budget Comm., Slip Opinion No. 2014-Ohio-5218.]

NOTICE

This slip opinion is subject to formal revision before it is published in

an advance sheet of the Ohio Official Reports. Readers are requested

to promptly notify the Reporter of Decisions, Supreme Court of Ohio,

65 South Front Street, Columbus, Ohio 43215, of any typographical or

other formal errors in the opinion, in order that corrections may be

made before the opinion is published.

SLIP OPINION NO. 2014-OHIO-5218

SANBORN ET AL., APPELLANTS, v. HAMILTON COUNTY BUDGET COMMISSION

ET AL., APPELLEES.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Sanborn v. Hamilton Cty. Budget Comm.,

Slip Opinion No. 2014-Ohio-5218.]

County budget commissions—School board’s proposed conversion of inside-mill

operating levy to permanent-improvement levy—R.C. 5705.341—

Commission’s authority to disapprove conversion as not clearly required

by budget.

(No. 2013-1598—Submitted September 9, 2014—Decided December 2, 2014.)

APPEAL from the Board of Tax Appeals, No. 2010-938.

____________________

O’NEILL, J.

{¶ 1} This appeal confronts us with an issue of the statutory powers and

responsibilities of two important agencies of local government in Ohio: the

boards of education, which operate Ohio’s school districts, and the county budget

commissions, which review the budgets of political subdivisions and which,

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among other things, approve or disapprove their tax levies. The Indian Hill

Exempted Village School District Board of Education (“BOE”) passed a

resolution to convert 1.25 “inside mills” from operating levies to permanent-

improvement levies. The BOE claims that its decision to do so lies within its

discretionary authority to allocate district funds and obtain the revenues necessary

to accomplish its objectives. The protesting taxpayers, appellants both before the

Board of Tax Appeals (“BTA”) and now before this court, disagree.

{¶ 2} The impetus for the controversy lies in the fact that converting the

inside millage had the fully foreseen effect of increasing the effective rate of

taxation under the “outside millage,” so that the district experienced a net increase

of revenue and thereby imposed an increased burden on the taxpayers of the

district.

{¶ 3} The Hamilton County Budget Commission approved the conversion

of the inside mills, but the commission members expressed their concerns about

the increased tax burden, and one member of the three-member panel dissented.

On appeal, the BTA affirmed the budget commission’s action in approving the

conversion of inside millage.

{¶ 4} Before this court, the taxpayers argue that the budget commission

should have disapproved the conversion because the school district ran a healthy

surplus and, as a result, the funds were not shown to be “clearly required” in the

budget for the ensuing tax year. Although we are not persuaded by the more

extreme suggestion that a school district may not run a surplus, we do hold that

the “clearly required” standard in the eighth paragraph of R.C. 5705.341, when

applied in this case, imposed not one but two mandates. First, the BOE had to

show that the 1.25 converted mills were matched with permanent-improvement

expenditures in the budget, and the BOE made that showing. Second, the BOE

had to demonstrate that the revenue derived from the increased effective rate of

taxation under the outside mills was necessary to cover operating expenses during

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the ensuing fiscal year. The BOE did not attempt to make this demonstration, and

the excess of revenue over expenditure in the budget persuades us that this

showing could not have been made. Accordingly, we reverse the decision of the

BTA, and we remand for further proceedings consistent with this opinion.

DEFINING THE STATUTORY ISSUE BEFORE THE COURT

1. Outside mills distinguished from inside mills

{¶ 5} Article XII, Section 2 of the Ohio Constitution provides as follows:

No property, taxed according to value, shall be so taxed in

excess of one per cent of its true value in money for all state and

local purposes, but laws may be passed authorizing additional

taxes to be levied outside of such limitation, either when approved

by at least a majority of the electors of the taxing district voting on

such proposition, or when provided for by the charter of a

municipal corporation.

{¶ 6} This provision underlies the distinction between “inside millage”

and “outside millage.” A “mill”—meaning “one one-thousandth”—is a rate of

tax imposed upon the tax base, which under the property tax is taxable value.1

Specifically, one mill is one one-thousandth of the taxable value, considered as

the amount of tax to be paid. It follows that ten mills equal one percent of taxable

value.

{¶ 7} The constitutional provision quoted above allows property to be

subjected to ten mills without voter approval. Those first ten mills are “inside

mills,” or the inside millage. Beyond the first ten mills, additional taxes may be

1

“Taxable value” in Ohio is 35 percent of the true value (also known as the market value) of the

property. Ohio Adm.Code 5703-25-05(B). The millage is the rate that is multiplied times the

taxable value to arrive at the amount of tax owed, subject to some further adjustments.

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imposed with voter approval; those levies involve “outside mills,” or outside

millage.

{¶ 8} By statute, a board of education has authority to use inside millage

for “any specific permanent improvement which the subdivision is authorized by

law to acquire, construct, or improve, or any class of such improvements which

could be included in a single bond issue.” R.C. 5705.06(A). In 1998, the General

Assembly enacted legislation that specifically prescribed a procedure for a board

of education to “change its levy within the ten-mill limitation in a manner that

will result in an increase in the amount of real property taxes levied by the board

in the tax year the change takes effect.” R.C. 5705.314. All parties agree that the

BOE in this case abided by those procedural requirements.

2. Outside mills and the H.B. 920 reduction factors

{¶ 9} In 1976, the General Assembly passed H.B. 920, which provided

property-tax relief by reducing the taxes levied by outside millage. Am.Sub.H.B.

No. 920, 136 Ohio Laws, Part II, 3182, 3194. We have had occasion to address

this subject in the past:

“The purpose of R.C. 319.301 [the H.B. 920 reduction statute], as

amended, is to limit growth of real property tax revenues that

would otherwise occur as a consequence of inflation of property

values. R.C. 319.301 requires the application of tax reduction

factors when property values increase due to reappraisal or update.

The result is that a school district will receive the same number of

dollars from voted levies after reappraisal as it did before

reappraisal, even though real property valuation in the district has

increased through real estate inflation.”

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(Footnote omitted.) State ex rel. Taxpayers for Westerville Schools v. Franklin

Cty. Bd. of Elections, 133 Ohio St.3d 153, 2012-Ohio-4267, 976 N.E.2d 890

(“Westerville Schools”), ¶ 21, quoting DeRolph v. State, 78 Ohio St.3d 193, 200-

201, 677 N.E.2d 733 (1997).

{¶ 10} What is crucial for the analysis in this case is the distinction

between the actual millage approved by the voters and the tax reduction resulting

from applying the H.B. 920 reduction. As we noted in Westerville Schools, the

H.B. 920 tax-reduction factors “[do] not reduce the rate of the voter-approved

levies.” Id. at ¶ 22. Indeed, R.C. 319.301(F) specifically states: “No reduction

shall be made under this section in the rate at which any tax is levied.” Instead,

the reduction factors reduce “the effective or actual taxes charged and collected”

under the voter-approved rates, and do so in such a way that the levy collects the

constant amount of revenue in spite of appreciation of property value. Westerville

Schools at ¶ 22. Indeed, they are codified in the Revised Code together with the

“rollbacks,” which are conceived of as “partial exemptions,” not rate reductions.

R.C. 319.302.

{¶ 11} Thus, the increased taxes that resulted from the conversion of

inside millage in this case did not involve an unvoted increase in outside millage,

which would be unconstitutional. Instead, those increased taxes reflected the

taxpayers’ loss of a portion of the benefit of the statutory reduction factors.

3. The 20-mill floor and the “unvoted tax increase”

{¶ 12} A limit to the H.B. 920 reduction factors is the so-called 20-mill

floor. Under this provision, a school district that levies at least 20 mills for

operating expenses will not have its levies subjected to reduction below 20 mills

as an effective rate. R.C. 319.301(E); see also Ohio Adm.Code 5703-25-45(E);

Hastings, Manoloff, Sharb, Sheeran & Jaffe, Baldwin’s Ohio School Law, Section

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40:26, 1043 (2013).2 This floor is an essential part of the BOE’s calculations in

this case: by converting the inside mills, the BOE caused the district’s tax

structure to hit the 20-mill floor, with the result that additional operating revenue

was generated by the increased effective rate of taxation under the outside mills.

4. R.C. 5705.341 requires that the rate of taxation be shown to be “clearly

required” in a budget for the ensuing fiscal year

{¶ 13} R.C. 5705.341, eighth paragraph, provides as follows:

Nothing in this section or any section of the Revised Code

shall permit or require the levying of any rate of taxation, whether

within the ten-mill limitation or whether the levy has been

approved by the electors * * * in excess of such ten-mill limitation,

unless such rate of taxation for the ensuing fiscal year is clearly

required by a budget * * *.

(Emphasis added). Reinforcing this standard is the requirement in the fourth

paragraph of the same section that when action by the budget commission has

been appealed to the BTA, the BTA must “consider” and “modify” that action “to

the end that no tax rate shall be levied above that necessary to produce revenue

needed by the taxing district * * * for the ensuing fiscal year.”

{¶ 14} Throughout this litigation, the BOE has pointed to permanent-

improvement expenditures in the budget for the ensuing tax year, and to nothing

else, to show that the conversion of the inside mills was “clearly required.”

2

The treatise explains: “However, if reduction would cause the total taxes charged and payable

for current expenses to be less than twenty mills, the tax commissioner is required to calculate a

reduction factor which would cause the taxes * * * to equal either the lesser of the sum of the rates

at which those taxes are authorized to be levied or the same amount as would be collected if those

taxes were levied at the rate of twenty mills.”

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FACTUAL BACKGROUND

{¶ 15} On November 10, 2009, the BOE held a previously announced

public hearing concerning whether to change 1.25 mills of inside levy from

operating expenses to permanent improvements, pursuant to R.C. 5705.314. On

December 15, 2009, the BOE unanimously adopted a resolution converting 1.25

inside mills levied for current expenses to 1.25 mills levied for permanent

improvements.

{¶ 16} The taxpayers who had protested to the BOE then took their

objections to the budget commission. There the primary issue, pursuant to the

eighth paragraph of R.C. 5705.341, was whether the tax budget submitted by the

BOE showed that the “rate of taxation for the ensuing fiscal year” was “clearly

required.”

1. What the BOE’s budget for the ensuing fiscal year showed

{¶ 17} At issue before the budget commission hearing was the school

district’s budget for the fiscal year commencing July 1, 2010, and ending June 30,

2011. That budget shows under the “permanent improvements” category

projected revenue from the conversion of the 1.25 mills amounting to

$785,675.33 for the second half of fiscal 2011, during which the conversion

would be in place, and revenue of $725,238.76 for the first half of fiscal 2012

(July 2011 through December 2011).

{¶ 18} The expenditures in the “permanent improvements” category for

fiscal 2011 were “Textbooks—new and replacement,” “Technology

replacement/Upgrades,” “Replacement bus (2),” “Maintenance

Equipment/Vehicles,” “Building equipment & Furniture,” “Repairs and

Maintenance for Permanent Items,” and “Building improvements.” The projected

“permanent-improvement” expenditures for fiscal 2011 on the spreadsheet in

these categories were $717,747.23, which is reflected as the sum of the first and

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second halves of fiscal 2011. Thus, the permanent-improvement fund would

experience a surplus of $151,643.03 for fiscal 2011 after the levy conversion.

Also, taking the spreadsheet at face value, the fund would experience a surplus of

$68,104.96 for the first half of fiscal 2012.

{¶ 19} Most importantly for the resolution of this appeal, the budget

demonstrates a strong excess of revenue over expenditures for the ensuing fiscal

year. Specifically, from July 1, 2010, through the end of 2010, the budget

projects a surplus of $724,506, and from January 1, 2011, through the end of the

fiscal year on June 30, 2011, the budget predicts a surplus of $1,124,805. This

means that the projected surplus for the entire fiscal year was $1,849,311. That

amount, when added to the preexisting surplus of $24,802,247, was predicted to

increase the unencumbered balance to $26,651,558 by the end of the fiscal year.

2. The revenue increase was discussed at the budget commission hearing

{¶ 20} At the budget commission hearing, David Nurre of the auditor’s

finance office summarized the situation. The district had “requested and

authorized the transfer of 1.25 mills of inside millage to a permanent

improvement fund, which represents an un-voted increase in the [effective] tax

rate.” Nurre noted that the total district revenues for the fiscal year would be

$33,200,000 and the expenditures $31,800,000. The district carried a balance of

$24,802,000—about 78 percent of projected expenditures.

{¶ 21} Nurre later observed that the levy conversion amounted to a request

for $1,678,000 for the permanent-improvement fund, that being the tax amount

generated by the 1.25 inside mills. Thereafter, Nurre responded to a question

from the county treasurer by stating that the current effective rate of taxation,

presumably for operating expenses, was 20.17 mills. By converting 1.25 inside-

operating-expense mills to permanent-improvement mills, the district would hit

the 20-mill floor. “So that would go down to 20 and that .17 mills would be

offset in a sense, that they would be levying about 1.08 mills of additional

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January Term, 2014

millage.” Using Nurre’s numbers, the fact that the 1.25 inside mills would yield

$1,678,000 indicates that the 1.08 additional effective-rate mills would equal

about $1,449,792—that is, the approximate amount of additional revenue

generated by the increased effective rate of taxation under the outside millage

would be $1,450,000.3

3. Evidence in favor of converting the inside mills

{¶ 22} With its budget, the BOE submitted a written argument that states

that the “ ‘clearly required’ component [is] established,” but discusses only the

relationship of redirected inside millage to enumerated permanent-improvement

expenditures. No attention is given to justifying the additional operating revenue

(c. $1,450,000) generated by the fact of hitting the 20-mill floor.

{¶ 23} At the budget commission hearing, the two main witnesses for the

BOE’s position were the school district’s treasurer and the school superintendent.

Their statements (garnering agreement from their opponents on this point)

asserted that the district was highly rated in terms of educational excellence and

that it had long adopted prudent fiscal management that earned the best rating for

its bonds.

{¶ 24} The school district’s treasurer made the following points:

3

At page 5 of their brief, the taxpayers state that “the revenue raised by the tax increase was and is

approximately $1,726,038.” The taxpayers derive that number from a document certified by the

budget commission entitled “Official Certificate of Estimated Resources.” That number, however,

is labeled “Capital Projects Funds” and probably correlates to the proceeds from the 1.25 inside

mills that were converted rather than the revenue derived from the increased effective tax rate

under the outside mills. Interestingly, however, neither the BOE nor the county made any

objection or correction to the taxpayers’ assertion. Before the budget commission, the taxpayers

presented $1,360,000—the yield from about one mill—as the amount of revenue generated by the

increased effective tax rate under the outside millage. In any event, whether the number is

$1,360,000, $1,450,000, or $1,726,038, the point is the same: the total surplus for the ensuing

fiscal year exceeds the additional revenue, meaning that there would be a surplus even without the

additional revenue.

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 The bond issue from 2000 had funded construction of two new school

buildings, a “$75,000,000 plus investment in [the] community,” and

“[t]hose buildings need to be maintained over a period of time.”

 The school district anticipated “several threats to [its] revenue sources

over the next couple of years,” including reductions in state funding.

 Responding to Auditor Rhodes’s observation that “what in fact the

permanent improvement levy does” is “get you back to the 20 mill

floor” with the result that “if you have a reappraisal with values

shooting up, you don’t have to be subject to House Bill 920,” the

treasurer answered affirmatively: “Mm hm.”

 In response to the auditor’s follow-up comment that as a result of

converting the inside millage, “the people get an automatic un-voted

tax increase based on the market value of their property,” the treasurer

said that “it does work the other way, when the property values

decline,” i.e., a steep decline in property values could preclude any

additional revenue.

 Addressing the issue whether the district’s reserves were excessive, the

treasurer stated that the board of education had “not resolved to

designate its $24,000,000 balance as reserve.”

{¶ 25} The superintendent also spoke. She stated that the BOE’s decision

to move millage “was made after a multiple year, comprehensive review of the

long range permanent improvement needs of the Indian Hill School District, and

in the context of the economic and multiple pressure on long-term revenue

funding that has been described.” She also noted that “the school district has

delayed many capital improvement projects over time,” and identified bus

replacements and an upgrade of the school auditorium as specific examples.

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{¶ 26} Other supporters of the levy conversion spoke, largely reiterating

the main points advanced by the treasurer and the superintendent.

4. Evidence against the levy conversion

{¶ 27} Ruth Hubbard spoke on behalf of the Committee for Responsible

School Spending, a citizens’ group opposed to the levy conversion. Hubbard

began by quoting R.C. 5705.341’s prohibition of any tax rate above what was

necessary to “produce the revenue needed * * * for the ensuing fiscal year” and

emphasized that “to [their] way of thinking, that means next year.” It followed

that the surplus in the projected budget for the ensuing fiscal year meant that the

school district could not justify a levy conversion that actually raised taxes.

{¶ 28} Hubbard next used an exhibit to make the following points:

 The school district had an “operating reserve fund” of about

$25,000,000,4 which amounted to about 79 percent of projected

operating expenses.

 The taxpayers’ study indicated that comparably excellent districts in

the county maintained “reserves” of about 35 percent of their

expenses.

 The Indian Hill district’s surplus funds “more than doubled” over the

preceding five years.

 The BOE projected an excess of revenues over expenditures of over

$3 million in 2010, and over $1 million in 2011.

 The BOE identified $700,000 in permanent-improvement expenses

that were previously handled as operating expenses. By converting the

inside millage, the BOE both more than covered the identified

expenses while generating additional operating revenue because of the

20-mill floor. That money simply increased the surplus.

4

According to the school district’s budget, the unencumbered balance going into the “ensuing

fiscal year” was $24,802,247.

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{¶ 29} Notably, none of the BOE representatives controverted any portion

of Hubbard’s presentation, except for pointing out that the permanent-

improvement expenditures would exceed $700,000 over a full fiscal year.

{¶ 30} Other speakers against the levy amplified Hubbard’s concern about

the outsized cash surplus in the district.

ACTION BY THE BUDGET COMMISSION

{¶ 31} The budget commission hearing was held on April 13, 2010. The

commission tabled the issue and took it up again on April 20, 2010.

Representatives of the BOE and the taxpayers were present. The lead counsel for

the BOE stated his opinion that the budget commission did not have authority to

substitute its judgment for that of the BOE. The prosecutor’s delegate and County

Treasurer Goering clearly were convinced of the need to defer to the school

board’s judgment and discretion under these circumstances. The auditor was not.

{¶ 32} The budget commission voted two to one, with the treasurer and

the prosecutor’s delegate concurring, to accept the 1.25-millage conversion; the

auditor dissented.

APPEAL TO THE BTA

{¶ 33} On May 20, 2010, the Committee for Responsible School Spending

and individual members Fred Sanborn, Richard and Carole Cocks, and Ruth

Hubbard appealed to the BTA pursuant to R.C. 5705.341. The BTA dismissed

the committee from the appeal for lack of standing.

{¶ 34} The parties submitted the case to the BTA on the budget

commission transcript and briefs. On September 13, 2013, the BTA issued its

decision. BTA found that “Indian Hill submitted a budget which ‘clearly

required’ specific revenue to pay for the costs of itemized improvements which

were eligible for payment via such fund.” BTA No. 2010-938, 2013 WL

6833234, *3. The BTA did not address the fact that the permanent-improvement

fund was newly created, was apparently fundable on a continuing basis by

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operating-expense funds, and carried its own surplus under the budget submitted

by the BOE. The BTA further held that the limitation of reserve accounts set

forth at R.C. 5705.13 was inapplicable, because the BOE in this case had not

established a reserve account. According to the BTA, “appellants’ objections

relate to the wisdom of converting such funding for permanent improvements, a

discretionary budget decision for which neither the budget commission nor this

board may substitute its own judgment.” Id. In so holding, the BTA did not

address the overriding concern expressed by the taxpayers: that no need was

shown for the overall increase in revenue that resulted from converting the inside

millage.

{¶ 35} The BTA affirmed the budget commission’s approval of the levy

conversion, and the taxpayers have appealed. We now reverse.

STANDARD OF REVIEW

{¶ 36} The BTA’s review of the approval by the budget commission of the

conversion of inside mills is, by statute, a plenary proceeding in which the BTA is

empowered to “modify any action of the commission with reference to the fixing

of tax rates, to the end that no tax rate shall be levied above that necessary to

produce the revenue needed by the taxing district or political subdivision for the

ensuing fiscal year,” and by which “the findings of the Board of Tax Appeals

shall be substituted for the findings of the budget commission.” R.C. 5705.341,

fourth paragraph. Our review of the BTA’s decision, by contrast, involves

determining whether the decision was reasonable and lawful. R.C. 5717.04,

eighth paragraph.

{¶ 37} The BOE contends that the BTA made a factual determination that

the school district “submitted a budget which ‘clearly required’ specific revenue

to pay for the costs of itemized improvements which were eligible for payment

via such [permanent-improvement] fund.” BTA No. 2010-938, 2013 WL

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6833234, *3. Because the BTA was the finder of fact, the BOE urges that we

must defer to the BTA’s decision.

{¶ 38} Closer inspection reveals, however, that the BTA’s decision relies

on its constricted reading of the scope of its authority—along with that of the

budget commission—to review the school district’s budget under the “clearly

required” standard. On the factual level, the BTA’s finding explicitly addresses

the permanent improvements in the budget but ignores the taxpayers’ argument

that the budget surplus negated the need for additional revenue.

{¶ 39} Accordingly, because the taxpayers’ argument calls upon us to

correct the BTA’s construction of the scope of review under the “clearly required”

standard set forth in R.C. 5705.341, we confront a question of law in this appeal

that is subject to de novo review. See Akron Centre Plaza, L.L.C. v. Summit Cty.

Bd. of Revision, 128 Ohio St.3d 145, 2010-Ohio-5035, 942 N.E.2d 1054, ¶ 10.

ANALYSIS

1. Expenditures for permanent improvements could have been made without

converting the inside mills

{¶ 40} As already discussed, we have before us the question of how the

“clearly required” standard of R.C. 5705.341, eighth paragraph, should be applied

in the present situation. At the outset, it is important to note that, as all parties

have acknowledged, converting the inside levies was not a legal condition

precedent to making the permanent-improvement expenditures. That is so

because the law permits the BOE to pay for permanent improvements using funds

derived from operating levies.

{¶ 41} As primary authority, R.C. 5705.05 is pertinent. That section

provides that a political subdivision “may include in [a current-expense] levy the

amounts required for carrying into effect any of the general or special powers

granted by law to such subdivision, including the acquisition or construction of

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permanent improvements.” (Emphasis added.) As one secondary authority

summarizes it:

A board [of education] may include in the general tax levy

for current expenses, within the ten-mill limitation, the amounts

required to carry into effect any of its general powers, including

construction of permanent improvements and payment of

judgments, but excluding payment of debt charges.

(Emphasis added.) Hastings, Manoloff, Sharb, Sheeran & Jaffe, Baldwin’s Ohio

School Law, Section 43:29, 1151.

2. The BOE’s conversion of inside mills generated two increments of

revenue: the permanent-improvement fund and new operating revenue

{¶ 42} The second preliminary point is that converting the inside millage

generated not one but two increments of revenue. It did so by affecting not one

but two rates of taxation in the district: it converted 1.25 inside mills, and it

caused an increase in the effective rate of taxation under the outside mills.

{¶ 43} As discussed, the school board started in a position of being just

above the 20-mill floor, i.e., it had levies in place that, after reduction of outside

levies, generated a little more than 20 mills of taxation for the district’s operating

expenses. By redesignating a portion of inside millage to the permanent-

improvement fund and away from operating expenses, the school district achieved

two objectives: (i) it continued to receive the 1.25 inside mills, although they are

now earmarked for permanent improvements instead of being more generally

available for operating expenses, and (ii) it continued to receive 20 mills for

operating expenses—in spite of the loss of the 1.25-mill inside levy for operating

expenses.

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{¶ 44} The district continued to receive 20 mills for operating expenses

because the H.B. 920 reduction of outside levies was decreased by operation of

law to retain a 20-mill overall effective rate for operating expenses. Thus,

converting inside millage brought the school district additional revenue, which

means the district residents wound up paying more property tax. And that is the

precise ground on which the appellants as taxpayers object: that they must pay

more taxes because the outside levies are reduced less than they otherwise would

be reduced. At the same time, they must pay the inside millage that has been

redirected to the permanent-improvement fund.

{¶ 45} As already noted, the rate of taxation stays within the outside mills

approved by the voters, so there is no constitutional violation. That said, the

change in the inside millage must still comply with the statutes—specifically, it

must satisfy the “clearly required” standard of the eighth paragraph of R.C.

5705.341. The specific issue is whether the “clearly required” standard should be

applied to the increased effective rate of taxation under the outside mills.

3. The “clearly required” standard should have been applied to both the

permanent-improvement revenue and the new operating revenue

{¶ 46} The eighth paragraph of R.C. 5705.341 provides that the “rate of

taxation for the ensuing fiscal year” must be “clearly required by a budget” in

order to be approved by the budget commission. The BOE’s consistent and

exclusive focus on the permanent improvements in the budget implicitly relies on

the contention that the sole relevant “rate of taxation” is the 1.25 inside mills that

were converted to a permanent-improvement levy. But the taxpayers demand that

consideration be given to the additional tax that they must pay as a direct,

foreseeable, and foreseen result of converting the inside mills.

{¶ 47} We agree with this contention. We hold that the “rate of taxation”

referred to by R.C. 5705.341 in the eighth paragraph encompasses, in this

situation, not only the 1.25 inside mills but also the estimated 1.08-mill increase

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in the effective rate of taxation under the outside millage, which results from the

conversion of the inside mills. Our holding means that the review by the budget

commission and the BTA should have extended to determining not only whether

the 1.25 mills that are newly devoted to permanent improvements were matched

to permanent-improvement expenditures in the budget but also whether the

increased effective rate of taxation under the outside millage was necessary to

maintain the balance between revenue and expenditures once the inside mills

were newly earmarked for permanent improvements.

{¶ 48} It is evident that neither the budget commission nor the BTA

addressed this aspect of the analysis. That constituted a legal error.

{¶ 49} But if due consideration is given, it is evident that, as a matter of

law, the increased effective rate for the outside mills was not “necessary to

produce the revenue needed by the taxing district”—and therefore not “clearly

required”—under R.C. 5705.341. That is so because the amount of the projected

surplus of revenue over expenditure for the ensuing fiscal year was $1,849,311,

an amount exceeding the $1,450,000 raised by the increased effective rate. Thus,

even after devoting the 1.25 inside mills to permanent improvements, the budget

would have had a small surplus; it follows that the additional revenue from the

outside mills was not “clearly required.”

{¶ 50} Indeed, far from defraying current operating expenses, the

increased revenue from the outside mills padded the district’s surplus. To permit

a tax increase that performs no function other than to increase the amount of

budget surplus would deprive the “clearly required” standard of all meaning.

4. The case law does not dictate a contrary result

{¶ 51} The BOE relies heavily on S. Russell v. Geauga Cty. Budget

Comm., 12 Ohio St.3d 126, 465 N.E.2d 876 (1984), which distinguishes between

“determin[ing] whether any rate of taxation is clearly required by the budget,”

which the budget commission must do, from “mak[ing] a judgment call on the

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SUPREME COURT OF OHIO

desirability of programs” whose funding is set forth in the budget, which the

budget commission may not do. Id. at 132. The BOE asserts that the conversion

of the inside mills and the concomitant generation of additional revenue from the

outside levies lay within its discretionary authority, even if the additional revenue

did not meet a current need within the ensuing fiscal year.

{¶ 52} S. Russell does not support the BOE’s position here. In S. Russell,

a health district levy had been approved by the voters pursuant to R.C. 3709.29,

and under R.C. 5705.31(E), the budget commission was required to approve such

levies without modification if they had been “properly authorized.” R.C.

5705.31(A) also insulated the levy at issue in S. Russell because it was outside

millage. S. Russell at 129. By stark contrast, those constraints do not limit the

budget commission’s authority here, because this case involves an increased

effective rate of taxation under the outside mills, which is a tax increase that is not

exempted from modification by the budget commission under R.C. 5705.31.

{¶ 53} On the other hand, S. Russell did specifically acknowledge that the

scope of the budget commission’s review under the “clearly required” test

encompasses “whether there has been excessive taxation, i.e., will the tax

generate more funds than shown to be needed within the budget of the district or

subdivision.” S. Russell at 132. We conclude that it is this portion of S. Russell

that applies in the present case. Here the conversion of inside millage led to an

increased effective rate of taxation under the outside millage. The BOE has at no

time offered a justification of that increase based on current expenses set forth in

the budget submitted; instead, the BOE has relied completely on long-range

planning and the advisibility of maintaining, and even increasing, its surplus

funds on account of funding uncertainties in the future.

{¶ 54} The BOE also relies on an opinion from the attorney general. In

2005 Ohio Atty.Gen.Ops No. 2005-002, that official opined that a school district

could perform the kind of inside-millage conversion at issue in the present case.

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January Term, 2014

Specifically, the attorney general found that the fact that the conversion brought

the district onto the 20-mill floor, and thereby increased the yield from the outside

levies, did not per se invalidate the conversion of the inside millage. Indeed, the

attorney general noted that the legislature enacted R.C. 5705.314 in 1998 for the

purpose of permitting the conversion of inside millage and opined that “by the

enactment of R.C. 5705.314, the General Assembly has recognized the possibility

that a school district might increase taxes by changing the use of its inside

millage.” Id. at 8.

{¶ 55} With respect to whether any particular conversion must be

approved by the budget commission, however, the opinion becomes hazier. The

opinion specifically declines “to make findings of fact or to determine the rights

of particular parties” and disavows making any “determinations regarding the

validity or effectiveness of particular actions taken with regard to the matter”

under consideration. Id. at 2. The attorney general refers to the controlling

principles from S. Russell but does not actually say how they apply. Indeed, the

opinion states as follows:

If * * * the board of education of a school district proposes to levy,

for purposes of permanent improvements, the amount of property

tax allocated to the school dist4rict within the 10-mill limitation

that, in the previous year, was levied for operating expenses, the

county budget commission is not empowered to disapprove or

modify the levy, provided that the levy was properly authorized

and the amounts to be levied are clearly required by the school

district’s budget.

Id. at 11. Thus, with respect to the precise issue presented by this case, the

opinion sheds no additional light.

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SUPREME COURT OF OHIO

5. The narrow nature of the holding in this case

{¶ 56} Nothing in this opinion should be construed to disapprove, as a

general matter, the discretion of a board of education to budget with a surplus. A

school district is generally entitled to collect revenue under its inside millage and

its voter-approved outside mills (the latter being subject to the H.B. 920 reduction

factors), while maintaining a significant balance of unencumbered funds.

{¶ 57} The disposition of this case depends upon the issue that specially

arises here—an unusual circumstance. Here, the increased effective rate of

taxation under the outside mills raised revenue and increased taxes overall, and

our holding is that that increased revenue had to correlate to current expenditures,

rather than constituting excess revenue for the district. To the extent that the

district seeks to retain the millage and the effective tax rates imposed in previous

years, the issue presented in this case simply does not arise.

CONCLUSION

{¶ 58} For the foregoing reasons, we reverse the decision of the BTA.

Additionally, we remand to the BTA with the instruction that, pursuant to the

fourth paragraph of R.C. 5705.341, the BTA issue an order modifying the action

of the budget commission consistent with this opinion.

Decision reversed,

and cause remanded.

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY, and

FRENCH, JJ., concur.

__________________

1851 Center for Constitutional Law, Kelsey E. Hackem, and Maurice A.

Thompson, for appellants.

Graydon, Head & Ritchey, L.L.P., Bruce I. Petrie Jr., and Harry J. Finke

IV, for appellees Indian Hill Board of Education and Indian Hill Exempted

Village School District.

20

January Term, 2014

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Thomas J.

Sheve, Assistant Prosecuting Attorney, for appellee Hamilton County Budget

Commission.

______________________

21

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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